Employment Law FAQ
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General Employment Law
Can my employers ask about my sexual orientation?
The Civil Rights Act of 1964 prohibits discrimination in employment on the basis of sex. Over the years, courts have held that this extends to discrimination based on sexual orientation, as well. This means it is illegal for an employer to discriminate against any employee on the basis of sexual orientation. Discrimination can occur in hiring decisions, work assignments, scheduling, disciplinary action, or firing decisions. The simple act of asking about an employee’s sexual orientation is usually not an act of discrimination in itself, but this information can lead to other discriminatory actions that are illegal. Employees should be very cautious any time an employer begins asking about sexual orientation in the workplace.
Can my employer assign me work based on my age?
Age discrimination in employment is illegal once an employee has reached the age of forty. This means that your employer cannot discriminate against you on the basis of age after your fortieth birthday. Discrimination is defined by a change in the terms and conditions of employment. So if you are assigned different tasks for a single shift, the essential terms and conditions of your employment have likely not changed. But if you are permanently assigned to a less convenient shift, or more physically demanding work, or assigned to a department with fewer opportunities for advancement, these changes could affect the overall terms and conditions of your employment.
Can I get fired for reporting discrimination or harassment?
In general, employees cannot face retaliation for reporting illegal activities in the workplace to an employer. But employees can be left without legal protection if they report these acts to the media rather than going directly to the employer to rectify the problem. Employees can also face discipline for disclosing trade secrets or proprietary information to outside parties. This is why it is so important to consult with an attorney before reporting any type of illegal activity in the workplace. A lawyer will help you report the right information to the right parties – and ensure that you do not face illegal retaliation for doing so.
What is illegal retaliation?
An employer can take many actions that are considered illegal retaliation. The most obvious is an outright firing. In most situations, it is illegal for an employer to fire an employee for reporting illegal conduct in the workplace to the proper authorities. But terminating employment is not the only way an employee can face retaliation. The employee might face a pay cut or demotion. The employer could assign them tasks or schedule them for a shift that is less desirable. If an employee is subjected to changes in the “terms and conditions” of employment because they made a protected report, they have been subjected to illegal retaliation.
How is whistleblowing defined?
There is not one set whistleblower law under state or federal law. Instead, whistleblower protections come from a series of employment statutes. These statutes will set a rule for employers to follow, then give specific protections to employees who report violations of the statute. Whistleblower protections only extend to employees who disclose the right information to the appropriate authorities. For example, the Sarbanes-Oxley Act of 2002 (SOX) was passed to ensure financial responsibility in the wake of the Enron scandal. Employees are protected when they report SOX violations to the appropriate financial authorities (for example, the Securities and Exchange Commission). But if an employee were to disclose confidential financial information to the media, this act would not be protected, and the employee could still be fired. This is why it is important to consult with a whistleblower attorney before reporting any illegal activities your employer is engaged in.
What should I do if I become disabled?
There are many forms of disability. Some disabilities will prevent you from ever being able to work again. Some will incapacitate you for a time but allow you to return to full-time employment once you have recovered. Other disabilities will allow you to maintain part-time employment. All of these different situations give you different employment rights. It is important to consult with a disability lawyer about your unique situation so that you do not miss out on disability benefits to which you are entitled. You may also be entitled to have “reasonable accommodations” in your workplace under the Americans With Disabilities Act.
Can I get fired for becoming disabled?
The Americans With Disabilities Act requires employers to make “reasonable accommodations” for employees with disabilities. This has led to a wide range of court cases that consider what, exactly, is “reasonable” to expect an employer to do. Reasonableness is highly dependent on the specific facts of your job. For example: taking extra breaks might be reasonable in an office setting, where you can catch up on work at your own pace. But in a highly structured manufacturing plant, an extra break might cost your employer thousands of dollars in lost productivity. This is less reasonable. So long as you can still perform the “essential functions” of your job (with or without reasonable accommodation), your employer cannot fire you just because you have become disabled.
Can I get fired for taking a medical leave of absence?
Medical leaves are protected under both the federal Family Medical Leave Act and the state California Family Rights Act. If you take medical leave under the provisions of these laws, you cannot be fired for exercising your rights. Your employer might also offer medical leave or paid time off as part of your employment contract. In this case, you have a contractual right to take leave as set forth in the agreement. But if you do not properly document that your leave is being taken under these laws, your employer may be allowed to fire you for taking an extended leave of absence. Be sure to get legal advice before you take any leaves of absence.
What is the California law on overtime pay?
California requires overtime pay for non-exempt employees who work more than eight hours in a day or forty hours in a week. (Exempt employees are not covered by the Industrial Welfare Commission Orders. Salaried employees are usually exempt from overtime pay requirements.) Overtime pay is 1.5 times your regular hourly rate.
What do I do if my employer refuses to pay me overtime?
If you believe you are not receiving overtime pay that you are owed, it is important to take action sooner rather than later. (The longer an employer gets out of overtime pay, the harder it can be to collect what you are owed.) An employment lawyer can help you determine the best strategy for recovering the overtime pay you are owed. It is critical that you have clear documentation of exactly what hours you should have been paid overtime for. Keep detailed records about all the hours you have worked.
What do I do if I can’t take or I’m not allowed to take my breaks?
Non-exempt employees (which includes most hourly workers) are entitled to a thirty-minute meal break if they work more than five hours a day. These workers are also entitled to a ten-minute rest break for every four hours they work. Consult a lawyer if you have questions about how these breaks are calculated or if you have been prohibited from taking your breaks.
What do I do if I feel I’m being discriminated against for having an accent?
Discrimination based on an accent can be a form of prohibited discrimination on the basis of your national origin. There are very few instances where an employer will have a legitimate reason for attacking an accent. For example, an actor might need to give a character a particular accent, and the employer would have a legitimate reason to require the actor not to use his or her usual accent. But other than this, there are very few jobs that cannot be accomplished successfully without attacks on your accent. Consult a lawyer about any possible discrimination you are facing because of the way you speak.
Can my employer forbid me to speak another language at work?
In general, employees are allowed to speak their native languages at work, so long as it does not interfere with the employer’s normal business operations. For example, customer service representatives might need to speak English with their customers. But this does not mean that you cannot speak another language in the workplace during your breaks. Employers who forbid other languages from being spoken can be liable for discrimination. The law prohibits employment discrimination based on an employee’s country of origin, and an attack on the language of that country can be a prohibited form of national origin discrimination.
What are some examples of age discrimination?
Employers are usually savvy enough not to tell an employee that he or she is being treated differently because of their age. But this does not mean that age discrimination is not occurring. If you are given fewer opportunities for advancement, or assigned to a lower-paying position, or subjected to unfair discipline, these can all count as age discrimination. Even jokes about your age can become discriminatory (if they are pervasive and offensive enough to actually change the conditions of your employment). There are many ways that age discrimination can occur, so be sure to consult with an employment lawyer about your unique situation.
What is an “at-will” work state?
In an “at-will” state, employment is at the will of both the employer and employee. Either party can terminate the employment at any time for nearly any reason. (Employers are, of course, still prohibited from firing employees on the basis of race, religion, gender, disabilities, and other protected categories.) At-will employment makes it easier for employers to fire and lay off their employees, so these laws generally favor employers.
What do I do if my employer refuses to pay for mileage reimbursement?
Under federal law, employers are not required to reimburse employees for mileage. California law does, however, require reimbursement anytime an employee is required to use their personal vehicle for work-related activities. An attorney can help you recover the mileage reimbursement that you are owed.
What is national origin discrimination under Title VII?
The Civil Rights Act prohibits employers from discriminating against employees based on their country of origin. Discrimination can occur even if the employee is not actually from that country, but the employer believes they are and discriminates against them on that basis. Most employers do not blatantly tell employees they are being treated differently because of the country they came from. Instead, you might be treated differently because of an accent or clothing. You might be subjected to comments or gestures that create an offensive work environment. Any time you suspect you are being treated differently, you should get legal advice about your right to be free from discrimination on the basis of the country you (might have) come from.
What is ADEA?
The Age Discrimination in Employment Act of 1967 (ADEA) protects employees over the age of forty from being discriminated against in the workplace. Discrimination is any act that affects the terms and conditions of a person’s employment. It includes the decision to hire or fire a worker, but it also includes pay, disciplinary acts, work assignments, and opportunities for advancement. Even harassment can be considered discrimination if it is offensive and pervasive enough to change the conditions of your employment.
What’s the difference between being fired and being laid off?
Being fired and being laid off both result in the termination of your employment. The difference is who was at fault. Firing is an employee’s fault, while layoffs are the company’s fault. For example, an employee who steals can be fired, but if the company must reduce its workforce to cut costs, that would be a layoff. If you are fired, you will not be eligible for unemployment benefits. Firing also makes it more difficult to explain the situation to future employers. These are two critical reasons why it is better to be laid off than fired. Both layoffs and firing can be a pretext for a wrongful termination that is prohibited by law. An employment lawyer can advise you of your legal rights to unemployment benefits and wrongful termination remedies in either situation.
Sexual Harassment Employment Law
Who do I tell when I feel I am being sexually harassed at work?
You should inform your employer if you feel you are being sexually harassed at work. Specifically, it is important to confide in a trusted workplace supervisor. This supervisor may be the person you report to directly or a supervisor of the person harassing you or any supervisor at your workplace.
How do I report sexual harassment at work?
To understand how to report sexual harassment at your specific workplace, be sure to read your employer’s sexual harassment policy carefully. The workplace policy will provide information on how to make a complaint at work. It may put your mind at ease to know that California law requires employers to institute a policy on sexual harassment and ensure employees like you are informed of the policy which describes the harassment complaint or reporting process.
What qualifies as sexual harassment at work?
Sexual harassment occurs when someone conditions a work benefit (i.e., a job or a promotion) on your submission to sexual advances or other sexual conduct. Sexual harassment also includes a hostile work environment which is characterized by unwelcome sexual comments or conduct that unreasonably interferes with your work or creates a work environment that is intimidating, hostile, or offensive. Importantly, sexual harassment may even occur where the inappropriate conduct is not directed at you (i.e., a sexual discussion or photographs).
Specifically, the behaviors that constitute sexual harassment must be severe and/or pervasive and may include (but are not limited to the following):
· Unwelcome sexual advances
· Promotion or denial of one based on willingness to exchange sexual favors
· Visual conduct such as leering, making sexual gestures, or displaying sexually suggestive objects, pictures, cartoons, or posters
· Derogatory remarks, slurs, or jokes
· Sexually graphic/degrading comments and words, or suggestive or obscene messages or invites
· Physical touch
· Physical assault
What should I do if I am sexually harassed at work?
If you have experienced sexual harassment at the workplace, be sure to keep detailed documentation of all that transpires, including names, dates, and times.
In addition to filing a claim at work based on your respective workplace policy, you can also file a federal and/or state complaint. If you wish to file a suit under federal law, you can file a discrimination complaint through the Department of Fair Employment and Housing (DFEH) or the U.S. Equal Employment Opportunity Commission (EEOC). On the other hand, if you are only interested in filing a California state claim, then you can do so under the DFEH only.
Can I get fired for reporting sexual harassment to my employer?
Your right to complain about and report harassment is protected under the law.
This means that you cannot be punished or face retaliation for:
· Making a harassment complaint, investigation, or lawsuit
· Acting as a witness in regard to a complaint, investigation, or lawsuit
· Communicating with a supervisor or manager about employment harassment Examples of retaliation include being demoted, fired, reassigned to a different job, or shift or subject to disciplinary action.
Does sexual harassment have to involve sex or other physical contacts?
No. Sexual harassment does not need to be based on or related to sex or sexual, such as sexual advances or other visual, verbal, or physical conduct. Sexual harassment broadly includes many types of offensive behavior based on an employee’s sex, creating an intimidating, hostile, or offensive work environment. This includes gender harassment and sexual orientation harassment based on actual and perceived gender or sexual orientation (regardless of the harasser’s sexual orientation or gender identity).
What is the time limit to file a sexual harassment claim?
While the federal law has a 180-day limitations period for filing sexual harassment, California’s time limit is 300 days under the state’s anti-discrimination and sexual harassment laws. An experienced Los Angeles employment law attorney can help you ensure that you file a timely case and explore your legal options if you are beyond the limitations period.
Seek legal advice:
If you have been a victim of workplace discrimination, you may be able to claim damages against your employer. Speak to our experienced Los Angeles employment attorneys at the Arshakyan Law Firm. We can help you navigate the legal issues and challenges surrounding your sexual harassment case. We can help you understand your legal options based on the specific facts and circumstances of your sexual harassment case. You can get started by contacting us at (888) 851-5005.
Pregnancy Discrimination Employment Law
Is it legal if I was bypassed for promotion because I’m pregnant?
Being passed up for a promotion due to discrimination is prohibited under Title VII of the Civil Rights Act and the California Fair Employment and Housing Act. Specifically, an employer cannot base work decisions such as work assignments and promotions on stereotypes and assumptions, including those regarding a person’s pregnancy. For example, an employer offering medical leave benefits must equally offer the same medical leave benefits for pregnant employees and employees with pregnancy-related conditions.
Can an employer ask an employee or an applicant if they are pregnant or if they intend to become pregnant soon?
While employers should avoid this question altogether, employers are not prohibited from asking you whether you are or intend to become pregnant soon. However, it is unlawful under federal and California state law to harass or treat an employee differently due to pregnancy or pregnancy-related reasons. It is important to document such conversations and other behaviors that are discriminatory based on your pregnancy. Such documentation can help to determine whether the behavior is pervasive or serious enough to constitute a pregnancy discrimination case.
What workplace actions are prohibited under the Pregnancy Discrimination Act
The Pregnancy Discrimination Act (“PDA”) prohibits pregnancy discrimination and requires employers to treat pregnant women and women with pregnancy-related conditions in the same manner as other employees with similar abilities or inabilities to work.
Pregnancy harassment may include pervasive or severe behavior such as:
· Hiring or firing based on pregnancy
· Making offensive or derogatory comments, jokes, gestures, or pictures related to pregnancy
· Workplace decisions related to pregnancy such as changes to your job assignment, promotions, layoffs, training, benefits (i.e., medical leave and health insurance).
Can I get fired for being pregnant?
No, it would be illegal for your employer to fire you because you are pregnant or intend to become pregnant. This should be distinguished from a situation where an employer fires you while you are pregnant but for other non-pregnancy-related reasons. Pregnancy harassment is prohibited when it is so pervasive or severe that it results in an employment decision based on pregnancy discrimination (i.e., being fired, laid off, or demoted because you are pregnant). You may be able to prove you were fired based on your pregnancy or related reasons if your employer expresses a remark regarding your pregnancy. However, in many cases, it will not be as clear-cut. For example, if you are unfairly terminated after your employer learns you are pregnant. Additionally, you may be able to prove a pattern of pregnancy discrimination if you have facts to support that your employer has fired employees for the same reason.
Seek legal advice:
If you have been a victim of workplace discrimination and are being treated differently because of your pregnancy or related conditions, then you may be able to claim damages against your employer. Speak to our experienced Los Angeles employment attorneys at the Arshakyan Law Firm. We can help you navigate the legal issues and challenges associated with your pregnancy discrimination case and help you explore your legal options. You can get started by contacting us at (888) 851-5005.